Through the Cracks

A push for reform may offer a lifeline to brain-injury victims behind bars

On October 19, 2004, 19-year-old Lyle Davis fell at work while installing heating/air conditioning equipment and hit his head. When his brain began to swell, doctors removed a section of his skull as well as a fist-size blood clot.

His mother, Jamie Barmore, says that accident created two Lyle Davises: "Before, he was really smart—a loving, caring big brother." But after he came home from the hospital, she says, "little things set him off, and he'd be screaming at everybody."

The Traumatic Brain Injury [TBI] Davis suffered also marked his involvement with the criminal-justice system. Now his record includes repeated charges and several convictions—one with a "guilty but mentally ill" plea—for drug-related issues and aggravated assault. He went to jail, and then to the state hospital in 2010 and 2013, only to end up back on the streets. As Davis' aggression and paranoia grew, Barmore says she could find no treatment that addressed both his TBI and the addiction issues that arose from his self-medicating.

Davis' most recent evaluation, Barmore says, found that "Lyle's cognitive difficulties associated with severe brain trauma cannot be effectively treated." His doctor recommended "supervision in a highly structured environment that he appears to thrive in," she says.

Defense attorney Jon Williams worked with then-Tooele Prosecutor L. Douglas Hogan to try to find a long-term answer to Davis' problems. Hogan, now a 3rd District Court judge, met with Valley Mental Health "and explored every available state resource in an attempt to find the services Lyle needs," Williams says—but Davis requires so much care, "there simply isn't anything available for him."

After seven years of representing Davis, Williams has realized that "our criminal-justice system is one which can't deal with people who can't help themselves." Davis "falls into a gray area," Williams says. "He functions just high enough to not qualify for some services but, tragically, can't live on his own."

Davis is far from alone. The Brain Injury Alliance's executive director George Gehling says there are 50,000 Utahns with TBI whose injuries range from mild to severe. According to the Utah Department of Health, 24,000 Utahns receive ER or hospital treatment for TBI annually at a cost of $95 million in 2012, which excludes costs for long-term care and disability. Out of that group, Gehling says, 4,000 "will experience long-term consequences as a result of their TBI." He estimates that less than half that number "get the services they need, whether state or federally funded"— and many, like Barmore, are defeated by "a services system that's really segmented."

TBI survivors often need housing, employment, substance-abuse counseling, therapy and/or medication management, Gehling says, "but there isn't any one place you can go to [find it]. You've got to pull the pieces together." State funding is very limited, and often requires a five-year or longer waiting period. Meanwhile, people like Davis cycle through jail and the state hospital without receiving the totality of services over the length of time that they need. But for the efforts of the court, Williams says, Davis "would have been at the prison years ago."

"Nobody has easy answers," Gehling says. In fact, "sometimes nobody has any answers."

However, recent efforts to reform the prison system may finally be about to change that.

The 2015 Utah legislative session saw a much-publicized push from politicians and advocates for jail and prison reform, particularly in diverting the mentally ill away from incarceration and into treatment. TBI is neither a mental illness nor a physical disability, which is why advocates are uncertain that TBI victims will benefit from prison reform—even if funding from Medicaid expansion or Healthy Utah became available to support these reforms.

On June 11, 2015, Eric Hutchings, R-Kearns, attended a meeting of the Criminal Justice Advisory Council, where, for the first time in his 14 years as a legislator, he heard lawmakers call for finding "a better way of managing our TBI population," he says. Hutchings, a leading proponent of prison reform, says that the political conversation about TBIs historically has been about funding rehabilitation, not addressing chronic and persistent incarceration episodes among Utah's severe TBI population.

The issue of incarceration and TBI survivors is new, Hutchings says. "This is a significant population that, I think five years ago, nobody really paid attention to or understood the severity of." Two years ago, national publicity over sports-related concussions helped reframe head injuries as "a serious issue" in the public mind, he says. Part of the problem, he acknowledges, is the medical ambiguity surrounding TBI: "It's not behaviorial; it's not mental health. So what is it, who owns it, who treats it? It's so new, I don't even know who to talk to," Hutchings says.

George Gehling runs the Brain Injury Alliance from a small office in Murray, along with three part-timers. "There aren't enough services for people with brain injuries in Utah, especially if you don't have insurance," he says. "You're talking about having a significant need for behavior modification, behavior management, occupation and speech therapy," to name just a few of the services a TBI survivor often needs.

Those who lack private insurance have a difficult time receiving financial help for those services. The TBI Fund, which seeks to provide TBI survivors with neuropsychiatric evaluations and direct them to services, began in 2009, with $50,000 from the Legislature. Over the following three years, the Legislature provided no funding. In 2015, the Legislature put aside $200,000 in ongoing funding, plus any unused funds from the Department of Health's budget, up to $550,000.

"People who have brain injuries often end up in a system geared to providing support for people with intellectual disabilities, and the two are not the same," Gehling says. The challenge with the TBI Fund, he says, "that those monies can only be spent on very focused, specific support services, and they're not available to address broader service needs that people with TBI require and don't have funding for."

While there is funding at the state Division of Services for People With Disabilities for brain-injury victims, the problem is the waiting list. In 2014, the Acquired Brain Injury [ABI] Waiver had more than $3 million to help brain-injury survivors. While that meant 112 people received services through the waiver, another 81 remained on a waiting list. Those with the most critical needs, as determined by the state, get to the top of the list first.

Barmore says she's never heard of the TBI Fund. She sought help from the ABI but never got a clear answer as to whom to apply to. "They try to discourage people from applying," she now believes.

While Utah Corrections spokeswoman Brooke Adams says the 6,000-strong prison population includes only eight inmates with TBI, Gehling says that number is "nonsensical." Diagnosing TBIs, is "just not up there on people's radar," he says. Still, the numbers available nationally for TBI in prison populations can vary dramatically from 25 percent to 85 percent, Gehling says.

Cameron Payne was one of four mentally-challenged inmates held in solitary confinement to manage his "behavior" [profiled in "Lost in the Hole," Sept. 27, 2012, City Weekly]. Payne smashed his head into a wall coming off a motorbike in 2007. In October 2010, he received a 1-to-15-year sentence after using a knife to slice open a man who was punching him in the head. Payne still remains in solitary, despite the concerns of family—and at least one member of the parole board—that he should be in community care.

During Payne's 2011 parole hearing, board member Robert Yeates expressed sympathy and frustration for Payne's situation. "As you've discovered, Utah does not have TBI programs inside or outside of prison," Yeates told the inmate, according to an audio recording City Weekly requested from the parole board.

Payne's mother, Alison, had not been able to see him in a year, because Payne's behavioral issues resulted in denial of visitation privileges. Finally, in May 2015, she was able to visit with her son. Ironically, she says, the five years of solitary confinement appear to have improved his cognitive skills and speech abilities to some degree. "I'm a fixer, but I can't fix this," she says. "You have a hope, then it just gets shut down." When and if he gets released, "How's he going to come out and be successful as a human with what life he's got left?" she wonders.

At Payne's most recent hearing in February 2015, hearing officer Bradley Rich noted Payne had received 51 disciplinary write-ups, which Payne alleged came after he was provoked by corrections officers. Payne had to work harder and learn to play by the rules, or else he wasn't getting out of solitary, Rich told him. "If you can't, you're just going to stay here forever."

Parole board spokesman Greg Johnson wrote in an email that "the board has consistently sought evaluations, treatment and an appropriate placement for Mr. Payne so he can be successfully released from prison." Payne's next parole hearing is in March 2016. The board ordered the Department of Corrections to explore options for his placement in the community. "The board also invited his mother to submit information about resources that may be available," Johnson wrote. After state officials told Alison they could find nowhere for her son to stay, she says she repeatedly offered to take him home, to no avail.

In late March 2015, Jamie Barmore thought she, defense attorney Williams, the court and mental-health providers had found an answer for Davis' situation through a federally funded placement in a supervised, locked-down Salt Lake City nursing and rehab center. "I had my hopes up for the first time in 10 years," she says.

But in April 2015, state officials told Barmore that, although Davis "definitely fits the criteria for being mentally ill, ... he is not physically disabled," Barmore says—which was one of the requirements for the federal funding.

Now Davis, who turned 30 in May, is living in a Tooele apartment, and each day his mother checks on him. "What happens when Lyle gets dementia" due to his brain injury, she asks. "I don't know how much longer I can handle him."

While Davis currently enjoys his freedom, his mother faces her own sentence: watching her son slowly deteriorate while being herself unable to do anything about it. "I can't even explain to anybody the depth of my betrayal or pain that, somewhere, we have let go of the mentally ill."